Tax Type
Individual Income Tax
Description
Administrative appeal not timely filed
Topic
Statute of Limitations
Date Issued
08-28-2012
August 28, 2012
Re: § 58.1-1821 Application: Individual Income Tax
Dear *****:
This will reply to your letter in which you seek reconsideration of the Department's determination letter issued as Public Document (P.D.) 10-134 (7/12/2010) to ***** (the "Taxpayers") for the taxable years ended December 31, 2004 through 2006. The Taxpayers, a husband and a wife, also appeal assessments issued for the taxable years ended December 31, 2007 through 2009. I apologize for the delay in responding to your letter.
FACTS
In P.D. 10-134, the Department determined that the husband was a domiciliary resident of Virginia for the 2004 through the 2006 taxable years. At the request of the Department, the Taxpayers filed joint individual income tax returns in December 2010 as Virginia residents for the 2007 through 2009 taxable years. No payments were made with these returns and assessments were issued.
The Taxpayers appeal the assessments, contending the husband was neither an actual nor a domiciliary resident of Virginia for the 2004 through 2009 taxable years.
DETERMINATION
Virginia Code § 58.1-1821 provides that "[a]ny person assessed with any tax administered by the Department of Taxation may, within ninety days from the date of such assessment, apply for relief to the Tax Commissioner." [Emphasis added.] Title 23 of the Virginia Administrative Code (VAC) 10-20-165 provides additional requirements regarding the timely filing of administrative appeals. This regulation provides information to taxpayers about the process for appealing tax assessments, including how to file a complete and timely administrative appeal.
2004 through 2006 Taxable Years
Title 23 VAC 10-20-165 F provides that a taxpayer who disagrees with the Tax Commissioner's final determination issued pursuant to Va. Code § 58.1-1822 may request a reconsideration of the determination. In order for the Tax Commissioner to grant a request for reconsideration, the request must be received by the Department not later than 45 days after the date of the determination letter, and the taxpayer must meet one of four specific requirements set forth in that section.
The Department's determination letter for the 2004 through 2006 taxable years was issued July 12, 2010. See P.D. 10-134. The Taxpayers' request for reconsideration was not filed until May 13, 2011. As such, the Taxpayers failed to file their request for reconsideration within the 45-day limitations period. Accordingly, the Taxpayers' request for redetermination concerning whether husband was domiciliary resident of Virginia for the 2004 though 2006 taxable years is denied, and the assessments remain due and payable.
2007 through 2009 Taxable Years
The assessment for the 2007 taxable year was issued on December 8, 2010. The assessments for the 2008 and 2009 taxable years were issued on December 9, 2010. The Taxpayers appealed the assessments by letter dated May 13, 2011.
The 90-day limitations period for filing an appeal for the 2007 through 2009 taxable years under the provisions of Va. Code § 58.1-1821 expired on March 9, 2011 for the most recent assessment, well before the appeal was filed. As such, the Taxpayers' administrative appeal for the 2007 through 2009 taxable years is barred by the limitations period in Va. Code § 58.1-1821. Accordingly, the assessments remain due and payable.
The Code of Virginia sections, regulation and public document cited are available online at www.tax.virginia.gov in the Tax Policy Library section of the Department's web site. If you have any questions about this response, please contact ***** in the Office of Tax Policy, Appeals and Rulings, at *****.
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- Sincerely,
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- Craig M. Burns
Tax Commissioner
- Craig M. Burns
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AR/1-4776130367.E
Rulings of the Tax Commissioner